"OMG, our beloved Emperor is gone! (sorta') But don't worry: the Democrats are fanning the flames of crazy, so it's just a matter of time before they run things again."

Tuesday, January 10

Court cases that trashed our Constitution

Over the last century Congress, the courts and the executive branch have slowly but surely trashed the Constitution--a process that continues to this day.

Usually these moves have been small enough that only the most ardent defenders of the Constitution even noticed, but occasionally the thefts of individual rights have been huge (GM and AIG, for example).

One of the biggest thefts of rights came in the case of Wickard v. Filburn (1942).

In 1938 Congress passed the Agricultural Adjustment Act, under which congress seized the power to have the federal government dictate to each and every farmer in the nation the maximum number of acres of wheat he would be allowed to plant. [!]

The stated purpose of this monstrous act was to "stabilize" [i.e. support] the price of wheat by controlling the total amount of wheat produced by all U.S. farmers.

[The Wiki article adds, "The motivation behind the Act was a belief by Congress that international fluctuations in the supply and demand for wheat were leading to wide swings in the price of wheat, which were deemed to be harmful to the U.S. agricultural economy." No idea whether this statement is based on a declaration by congresswhores or is simply supposition on the part of the author, but either way it illustrates a lack of understanding of economics, since a U.S. law limiting production obviously wouldn't limit wheat production in other countries, and thus couldn't eliminate price swings.]

Following passage of the Agricultural Adjustment Act, the feds declared that every farmer was only permitted to grow a certain number of bushels of wheat, called an "allotment." Roscoe Filburn planted more acres of grain on his land than the allotted number. He had no intention of selling his wheat, but intended to use it to feed his own chickens (which he did). Nevertheless the government fined him and ordered him to burn his crop.

The government claimed congress had the authority to dictate the number of acres of wheat farmers planted [the actual word they used was "regulate" because it sounds nicer than "dictate"] because of the Constitution's "interstate commerce clause." Filburn countered that because he hadn't sold his grain but had used it to feed his own chickens, his wheat had never entered any form of "commerce" at all--much less “interstate commerce.”

Since the "commerce clause" only gives the government the power to regulate interstate commerce, that would seem to dispose of the issue. But astonishingly (unless one is a seasoned student of politics) the U.S. Supreme Court ignored this argument and ruled against him, holding that the farmer's use of grain he grew to feed his own chickens nevertheless “affected interstate commerce"!

The court's reasoning is amazing: It held that Filburn's growing of his own wheat to feed his chickens allowed him to avoid buying wheat he would otherwise have had to buy on the open market. By avoiding buying grain in the market, the court found that Filburn's acts affected interstate commerce, and accordingly, that the government had the power to regulate all under the commerce clause.

Wait, it gets even goofier.

The court unanimously held that the power to "regulate interstate commerce" included the power to "set all prices at which that commerce occurred." It is vital to note that this crucial "finding" is actually simply judicial fiat. Its source is the *assumption* that since prices clearly play a role in commerce, the Founders must have intended to give congress the power to regulate prices.

It doesn't take a philosophy degree to see the flaw in such "reasoning."

As far as I know, there are no words in the Constitution or the writings of the founders that bear on the question of how the Founders defined "interstate commerce." Unless I've overlooked the relevant essay or section, it suggests the court's finding was manufactured out of thin air. Or as it's often phrased, the court "pulled this finding out of its ass."

This absurdity is most nakedly displayed in the opinion of justice Robert H. Jackson, who fretted that purely local activities...

...cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only 'indirect.' [T]here is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. [However,] [w]e believe that a review of the course of decision under the Commerce Clause will [show] that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce."

That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if [Filburn's] activity be local **and though it may not be regarded as commerce,** it may still...be reached by Congress if it exerts a *substantial* economic effect on interstate commerce[,]...irrespective of whether such effect...might at some earlier time have been defined as 'direct' or 'indirect.'

In effect, Jackson's convoluted wording re-writes the commerce clause to give the federal government power to regulate anything at all: "Even if activity be local--and although it may not be regarded as commerce, it may still be reached [controlled] by congress if it 'exerts a substantial economic effect' on interstate commerce."

At first this would seem to be a major slip, since no one could claim with a straight face that Filburn's "excess" wheat production had a "substantial economic effect on interstate commerce." To recover, Jackson put the second part of this new weapon elsewhere in his opinion: That even if a specific action by an individual clearly had *no* substantial effect, the court would nevertheless support government regulation of the activity if the aggregate effect of lots of people doing the same thing *would* have an effect.

Pretty neat trick, eh? Here's another look at the overreach, from the opinion:

The stimulation of commerce is a use of the regulatory function [as much as] prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

So first the court arbitrarily declares--pulls out of the air--that government "stimulation" of commerce is included in the enumerated power to "regulate" interstate commerce. It then vaults to the equally arbitrary conclusion that "this record leaves us in no doubt" that congress may have considered that growing and consuming wheat on one's own farm was within congress's power to dictate [though the opinion uses the word "regulate" because...well, you know], since if not, it "would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices."

One is almost astonished by how many unsupported conclusions can be crammed into a single paragraph.

The sleaziness--the crappy, duplicitous, underhanded doublespeak--of the government is clearly shown in this graf from Jackson's opinion:

[Filburn claims] that this [act] is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most 'indirect.' In answer the Government argues that the statute regulates neither production nor consumption, but only marketing;

Wait...wasn't the whole basis of the case the government's claim that Filburn had "produced" too much wheat? How the hell do they then pivot 180 degrees and claim the statute does NOT regulate "production nor consumption, but only marketing"?

Of course this is exactly what the Obama administration did with the Health Care "Reform" Act: "We absolutely promise it's NOT a tax, ain't gonna raise anyone's taxes." Until they get challenged on the legality of forcing people to buy health insurance. Then suddenly--voila!-- it's legal precisely because it's a tax, and the government has the power to levy taxes.

In any event, the court's decision in Filburn effectively eliminated all Constitutional limits on the powers of the federal government--because if a person growing food *for his own use* is declared to "affect interstate commerce," then everything does.

If congress has the power to "stimulate" interstate commerce, what restraining power remains in the Constitution that would prevent congress from giving billions of dollars to a favored company to "stimulate" production of overpriced electric cars, or solar panels?

And of course, the current Dem congress and present-ent would answer: "Nothing in the Constitution limits our power."

==

'Filburn' is a textbook case of judicial overreach--making crap up to support a desired outcome not supported by the Constitution. But great questions aside, the details of 'Filburn' show how a great nation can be undermined by minutiae:

A government bureaucrat decreed that Filburn's 1941 "allotment" for wheat planting would be 11.1 acres, at a "normal yield" of 20.1 bushels of wheat per acre, thus yielding 223 bushels of wheat. Filburn--who presumably knew something about expected yield per acre for the farming methods he could afford to use--planted 23 acres and harvested 239 bushels.

Ignoring the great Constitutional issues for a moment, let us note for the record that the relatively limitless resources of the federal government were brought to bear on one poor farmer for the *net result* of producing ...*sixteen bushels* of wheat over what the bureaucrats had already planned for.

Shocking, but as we've come to see, hardly surprising.

There is no law more far-reaching or unavoidable than the law of unintended consequences. It may well be that the congresswhores who passed the "Agricultural Adjustment Act of 1938" had good intentions. After all, wild price swings from year to year are certainly terribly hard on farmers, since they make it hard as hell to know what to do *next* season.

But forgive me if I'm a bit skeptical. Because I'm more inclined to believe that 70-odd years ago congress operated pretty much the same way it does today: Rampant corruption, vote-buying, bribery and log-rolling. Plus, I think we've seen enough proof that congresswhores rarely bother reading the crap they pass (and probably didn't even back when bills were a few dozen pages long instead of 2000-plus).

So I'm more inclined to think nobody in congress thought about the unintended consequences of this bill--any more than most of 'em do today.

But congresswhores aren't expected to be brilliant intellects. By contrast, one would hope that the nine justices of the U.S. Supreme Court would be constitutional scholars, and the most incisive minds in the country. Of course this isn't always the case, but...

Mix corrupt, inattentive or easily bribed congresscritters with an inattentive or politicized Supreme Court and--voila!-- an unConstitutional power is conferred on the federal government.

And this highlights three major, recurring flaws in our system: First, voters keep electing a substantial number of corrupt, inattentive, greedy, self-serving people to congress. [Certainly not all, but the good guys are hugely outnumbered.]

Second, congress and the courts keep trying to grab more power over *everything.*

And third, the courts routinely use unconstitutional criteria to interpret laws passed by the corrupt, moronic congresswhores--and always in the direction of grabbing more power for both branches.

Filburn shows us how the Constitution's bedrock idea of limited government was subverted.

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Ex-AF pilot. While airliners are very safe, flying a single-pilot jet can be extremely demanding, especially in bad weather. It's a *huge* tribute to engineers that today's commercial jetliners are so amazingly safe!